Public health and vaccines commentaries – employment repercussions

public health and vaccines

When employees speak up on matters of public health and vaccines in their free time, those who do not like the speech may retaliate by complaining to their employers, who may be tempted – or feel forced – to act against the employee. But employers should not, and some types of employers – public employers – are likely barred from doing so.

This post considers mostly employees in public institutions – department of health, teaching hospitals, or universities – because these employees have legal protection against sanctions – an employer is likely legally prohibited from acting against them because of speech on matters of public health and vaccines in their free time.

However, the points made about defamation and the policy considerations also apply to private employers, those who can fire employees at will, at least when the employees provide mostly accurate, fact-based information.

These issues can come up in a variety of contexts, some of which the employer may appreciate more than others. One situation is when an employee working for a public institution spends part of his personal time commenting on public health and vaccines issues and informing the public through a personal blog, on which his position is mentioned, or by commenting on social media, Facebook or Twitter.

The employee provides information, corrects misconceptions, and criticizes those offering bad advice or factually inaccurate information, sometimes with strong language. A person so criticized contacts the public institution and threatens to sue for defamation if the blogging does not stop and the statements are not retracted, or if the employee is not otherwise dealt with.

Or, for example, an employee makes a joke about a public health issue – in good or bad taste – in her personal time. People offended complain to the employer, either just criticizing the employee or threatening legal action. In both cases, employers should not take measures against the employee.

First, in most circumstances, there would almost certainly be no defamation case here. Second, limits created by the First Amendment on the ability of public employers (though not private ones) to fire an employee for their speech likely apply here. Finally, there are public benefits from allowing the employee to speak in this manner. Continue reading “Public health and vaccines commentaries – employment repercussions”

Lori Matheson refuses vaccines for child – Michigan court says no

Lori Matheson

On November 21, 2019, the Court of Appeals in Michigan rejected the appeal of Lori Matheson against a trial court order ordering her to give her daughter more time with her father, to vaccinate her daughter according to the recommended schedule, and to choose a new pediatrician for the child in collaboration with her father. The court found that it’s in the child’s best interest to be vaccinated.

This is a dispute between the divorced parents of a now four-year-old child (whose name is omitted for her privacy) about her care and custody. Vaccines are only one of the issues in dispute, the one I will focus on (since that is my area). Continue reading “Lori Matheson refuses vaccines for child – Michigan court says no”

NVICP SIDS vaccine decision overturned on appeal – the facts

SIDS vaccine

On July 18, 2018, a Judge of the Court of Federal Claims overturned the NVICP SIDS vaccine decision that awarded compensation to Mr. and Mrs. Boatmon for the death of their baby, JB. The Court found that the Special Master’s decision was arbitrary and capricious because it ignored previous decisions and applied a too-low standard of proof to the case. Continue reading “NVICP SIDS vaccine decision overturned on appeal – the facts”

California SB276 – legislation to limit vaccine medical exemptions – UPDATED

sb276

On 20 June 2019, after a long day of testimony on California SB276 from both sides of the mandatory vaccine issue, the assembly health committee voted 9 in favor, 2 against, and 2 abstaining to move forward with the bill which can prevent fake medical exemptions.

This post will describe the amended bill and then shortly address today’s events. Continue reading “California SB276 – legislation to limit vaccine medical exemptions – UPDATED”

Anti-vaccine press conference about California’s SB276 – checking facts

anti-vaccine press conference

On September 5, 2019, Attorney Leigh Dundas, representing an organization called Advocates for Physician Rights, held an anti-vaccine press conference attended by very little press, and organized by anti-vaccine activists. 

Ms. Dundas called for a Department of Justice investigation into what she described as a “multi-year campaign to override laws aimed to safeguard the privacy of minor children,” and made accusations of a cover-up. Note that the Department of Justice receives many and constant calls for actions, so just calling them to investigate means little without actually pointing to serious wrongdoing that justifies it. Ms. Dundas did not point to such wrongdoing.

The anti-vaccine press conference addressed efforts in the early days after the enactment of SB277 to address an emerging issue – fake medical exemptions. But in spite of the efforts to present this as a new discovery or a nefarious plot, it isn’t.

In fact, SB277 opponents knew of the efforts in early 2016 and responded in an aggressive fashion, targeting Dr. Charity Dean, who took the lead in them, with many personal attacks and inclusion in one of their lawsuits. There is also no real evidence of anything nefarious. There is, however, abundant evidence that fake medical exemptions were an issue in 2016 and onwards, and SB276 is directed at a real problem. Continue reading “Anti-vaccine press conference about California’s SB276 – checking facts”

New York vaccine exemptions law – UPDATE – appeals court rejects stay

New York Vaccine exemptions law

On July 12, 2019, Judge Mackey of the Albany County Supreme Court (see Note 1) rejected the temporary restraining order request of plaintiffs challenging the updated New York vaccine exemptions law which removed the state’s religious exemption for school immunization requirements (see Note 2). While this is only the first step in what is almost certain to be a long process, and full arguments were not yet heard, the content of the decision does not bode well for plaintiffs – in line with abundant jurisprudence. Continue reading “New York vaccine exemptions law – UPDATE – appeals court rejects stay”

Shoulder injury related to vaccine administration (SIRVA) and NVICP

SIRVA

In this article, we are going to take a look at how shoulder injury related to vaccine administration (SIRVA) relates to the National Vaccine Injury Compensation Program (NVICP) claims. In 1986, the United States Congress passed the National Childhood Vaccine Injury Act, which among other things created the  NVICP, sometimes called the Vaccine Court. The act’s main goal was to protect vaccine manufacturers from vaccine injury claims and liability–but not for the reasons you might think. 

Congress was rightly concerned that the costs for these legal actions were going to drive most, if not all, manufacturers from the USA market. That would have been a horrific problem for the country, with no ability to protect children from deadly and dangerous diseases.

The NVICP provides a no-fault program to resolve vaccine injury claims – “quickly, easily, with certainty and generosity.” The program was (and continues to be) funded by a tax on all vaccines sold in the country. Moreover, using a system of expert administrative “judges” (called Special Masters), a petitioner seeking to establish causation-in-fact must show, by a preponderance of the evidence, that but for the vaccination, they would not have been injured, and that the vaccination was a substantial factor in bringing about their injury.

Continue reading “Shoulder injury related to vaccine administration (SIRVA) and NVICP”

New York vaccine law does not violate IDEA – Update – no injunction

New York vaccine law

On June 13, 2019, a revised New York vaccine law, which removed the religious exemption to its school immunization mandate, was signed by the governor. Anti-vaccine activists filed a lawsuit against the law, claiming it violates the First Amendment – a claim that flies in the face of extensive jurisprudence.

On July 26, 2019 a second lawsuit was filed against the law claiming it violates the IDEA act by keeping children with disabilities out of school, led by attorney Kim Mack Rosenberg who was involved in arguing against California’s law (though anti-vaccine activist’s Robert F. Kennedy’s jr. organization, Children’s Health Defense, took credit for it as well). Attorney Rosenberg is clearly highly competent, though unfortunately, also very anti-vaccine, and made the best case possible for her claims.

While there is not the same extensive jurisprudence on this issue as there is on other issues, there are good grounds to reject the claims here, since, as spelled out by public health scholars Ross Silverman and Wendy Hense, the barrier to children’s access to services is parental choice not to vaccinate, not a state-created impediment that targets children with disabilities. Other claims in the lawsuit are also problematic. Continue reading “New York vaccine law does not violate IDEA – Update – no injunction”

Oliver vaccine injury case – Court denies appeal of NVICP ruling

vaccine injury case

On January 9, 2019, the Federal Circuit’s Court of Appeals decided not to rehear an appeal by Laura and Eddie Oliver of a decision of a vaccine injury case (referred to as “Oliver”) by a special master of the National Vaccine Injury Compensation Program (NVICP) who ruled that the NVICP would not award compensation to their son for his developmental delays and seizure disorder.

Circuit Judge Pauline Newman dissented to the Court of Appeals decision, joined by Judge Jimmie V. Reyna. Although Judge Newman’s dissent carries no legal authority, it can be offered as persuasive materials in other cases. It should not, however, carry much weight, because Judge Newman’s dissent mischaracterizes the Oliver vaccine injury case, mischaracterizes the relevant science, and makes numerous other errors.

This article will examine the Oliver vaccine injury case along with the scientific issues involved. Continue reading “Oliver vaccine injury case – Court denies appeal of NVICP ruling”